Derek writes: "The briefs convincingly demonstrates that this doesn't qualify as a compelling government interest because the regulatory regime established by the government already allows for large numbers of women not to get free abortifacients /contraceptives from their employers."
Convincing to whom? The claim is spurious. See http://balkin.blogspot.com/2014/01/hobby-lobby-part-iv-myth-of.html On Fri, Feb 21, 2014 at 5:48 PM, Gaubatz, Derek <dgaub...@imb.org> wrote: > I don't find the proposition to be particularly comforting that religious > liberty concerns must take a back seat in areas "highly regulated" by the > government as opposed to "lightly regulated" ones. Instead, it seems to > me that the need to vigorously protect free exercise of religion is of > *greater* importance in those areas of life where government intrusion is > higher. More fundamentally, the view that the free exercise of religion > matters less when the government has already occupied the regulatory space > raises the question of where does the right to free exercise of religion > come from at all. Is the protection of religious exercise just a gift of > a positivist state that sees some utilitarian benefit in providing some of > its citizens a right to practice religion? (E.g., wouldn't it be quaint > if our government allowed a few Mennonites--so long as they don't take their > faith too seriously). Or does the government protect the free exercise > of religion because it recognizes that following one's conscience in > religious matters is something that is in the very nature of its people and > is therefore a fundamental right that exists in all people prior to the > state even existing? Under the first view, what the state gives, the > state can take away. Under the second view, the power of the state is > necessarily constrained by the existence of fundamental rights that inhere > in the very nature of the people. Yes, the government can limit exercise > of religion in the second view, but only where it truly satisfies strict > scrutiny; if the government exercises its power more broadly to limit free > exercise of religion, it loses its legitimacy by denying its people the > ability to live and act in accordance with something that makes them human > in the first place--the ability to live and act in accordance with their > religiously informed conscience. > > > > On the substance, I would also disagree that Hobby Lobby and Conestoga > have "ignored" the so-called Caldor / Establishment Clause problem of > needing to avoid harm to 3rd parties. To the contrary, the briefs deal > extensively with whether the alleged harm to 3rd parties--i.e., increasing > the number of women who won't get free abortifacients > /contraceptives--qualifies as a compelling government interest. The > briefs convincingly demonstrates that this doesn't qualify as a compelling > government interest because the regulatory regime established by the > government already allows for large numbers of women not to get free > abortifacients /contraceptives from their employers (i.e., women in > grandfathered plans, plans with employers who employ less than 50 > employees, and plans with those employers the Administration (grudgingly) > conceded were sufficiently religious). Where so many exceptions to this > interest already exist, this doesn't rise to the level of a compelling > government interest. Moreover, the fact that other exceptions are given > for non-religious reasons means that this is not a case in which an > exception has been given for uniquely religious reasons, thereby further > avoiding an Establishment Clause concern. > > > > Grace and peace to you, > > Derek L. Gaubatz > > IMB General Counsel > > > > *Our vision is a multitude from every language, people, tribe and nation > knowing and worshipping our Lord Jesus Christ**.* > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu > *Sent:* Thursday, February 20, 2014 8:27 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: recommended Hobby Lobby posts > > > > Mark Scarberry writes "We are on a slippery slope when we refer to > someone as seeking to have "the government[] ... authorize [it] to act on > religious beliefs in ways that harm others," when what is at stake is > whether the government can force that person to do something for others in > violation of religious conscience. This comes very close to saying that the > government authorizes whatever it does not prohibit." > > > > Mark's concern is very apt in a world of lightly regulated relationships > between people who are not in a legally constructed relationship. The > government does not "authorize" me to be rude to my neighbors when it fails > to prohibit the rudeness. But the employment relation is a highly > regulated contractual one, with all sorts of legal duties imposed on > parties, especially on employers. So if government prescribes terms for > that relationship -- e.g., provide a safe workplace -- then an exemption > from those terms is "authorization" to behave differently and alter the > contract to the detriment of the other party. > > The minimum coverages -- contraceptive and otherwise -- are now > effectively part of the employment contract in firms with 50+ employees, > and the only ways out are 1) keep your pre-ACA plan, or 2) pay the > assessable payment for dropping or not obtaining coverage. (If you do the > latter, your employees can buy coverage on the exchanges, and they will get > all the coverages.) An exemption from these minimum coverages "authorizes" > employers to do something different, and thereby deprive their employees of > the minimum coverages through either employment or purchase on the > exchanges. The "grandfather" exemption, whatever else we say about it > (such as its design as a transition rule), also authorizes deprivation of > coverages, but NOT as a result of religious belief. The Establishment > Clause limits the power of government to authorize employers to deprive > employees of minimum coverages (or other statutorily mandatory terms of the > employment relation) for reasons of employer religious belief. (Maybe Mark > and others think Caldor is wrong; but if it's right, there is an > Establishment Clause problem here, and it doesn't go away just because > Hobby Lobby and Conestoga Wood have ignored it in the litigation thus far.) > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
